In re D.S.
Ched H. Peck, 304 North Second Street, Hamilton, Ohio 45011, for appellant, T.S. (-058 & -064)
Theresa N. Ruck, 8738 Union Centre Blvd., West Chester, Ohio 45069, for appellant, G.H. (-065)
Robert C. Bauer, 501 West Loveland Avenue, Loveland, Ohio 45140, guardian ad litem
Karen Oakley-Everson, Suite 400, 105 East 4th Street, Cincinnati, Ohio 45202, attorney for children
O P I N I O N
PIPER, J.
{¶1} Appellants, the biological parents of D.S., G.H. and J.H., appeal a decision of the Clermont County Juvenile Court granting permanent custody of the children to a children services agency.
{¶3} The dependency complaint further alleged that although the mother stated she would have no further contact with the father after this incident, the caseworker received information that the father had been staying with the family after his release from jail. The complaint stated that police went to the apartment because the mother failed to show for grand jury testimony in the case and officers discovered the father hiding in a closet in the home. The agency stated that since neither parent was willing to protect the children under the circumstances, it was requesting temporary custody as the agency believed the children to be in grave danger if they remained in their parents’ custody.
{¶5} J.H. was born to the parents on August 20, 2008. The parents were making progress on the case plan, and at a semi-annual review of the case on September 25, 2008, the two older children were returned to the home with protective supervision by the agency.
{¶6} On December 30, 2008, the father was again charged with domestic violence against the mother. The agency filed a motion to modify the protective supervision with the children in the custody of the mother only, on the basis that the father was an increased risk to the children and the mother had obtained a protective order which prohibited the father from being with the mother or children.
{¶7} On May 7, 2009, the agency requested emergency custody of the children because a well-check on the family revealed that despite the protection order, the father was again living with the mother and children. In addition, the mother had an invalid urine test and the father refused to be tested. The agency also filed a complaint alleging J.H., the youngest child, was dependent. The court found J.H. was a dependent child on September 10, 2009 and the agency was granted temporary custody of all three children. A case plan was again filed with similar goals as the previous plans.
{¶8} On January 25, 2010, the agency moved for permanent custody of the children. At a hearing on the motion, an attorney from the Child Support Enforcement
{¶9} Julie Jordan, an adoption supervisor, testified that an adoption plan would be put in place if permanent custody were granted to the agency and placement with relatives would be given preferential consideration. The paternal grandfather and paternal aunt testified regarding possible placements for the children. The children‘s father testified and stated that he is currently serving an 18-month sentence for violation of a domestic violence protection order and that he has had problems with cocaine and heroin abuse.
{¶10} A magistrate granted the motion for permanent custody. The trial court overruled objections to the magistrate‘s decision on July 21, 2010. The parents now separately appeal the trial court‘s decision to grant permanent custody of the children to the agency.
{¶11} The father raises three assignments of error for our review, arguing that the trial court‘s decision is contrary to law and against the manifest weight of the evidence and that the court failed to consider all relative placements for the children. The mother raises two assignments of error, arguing that the trial court‘s decision is contrary to law and against the manifest weight of the evidence.
{¶13} Pursuant to
{¶15} When considering whether a child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents,
{¶16} The father argues that the record does not support this determination by clear and convincing evidence since he visited when he was able, acted appropriately with the children and they are bonded to him. He further argues that although he did not pay support for the children, the court failed to make a determination as to whether his failure to pay was justified or not. The mother argues that the record does not support this determination as it relates to her because she is bonded to the children, visited for 73 percent of the available visits and she is working on her addiction issues and other case plan services and has had negative urine screens only since June 2009.
{¶17} The juvenile court found both parents failed to pay child support. While the father argues the court did not determine if that failure was justified due to his
{¶18} Both parents also argue that the trial court‘s determination regarding the best interest of the children is contrary to law. When considering the best interest of a child in a permanent custody hearing
{¶19} “(a) The interaction and interrelationship of the child with the child‘s parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child;
{¶20} “(b) The wishes of the child, as expressed directly by the child or through the child‘s guardian ad litem, with due regard for the maturity of the child;
{¶21} “(c) The custodial history of the child, including whether the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999;
{¶23} “(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.”
{¶24} With regard to
{¶25} With regard to section (b), the court found that the oldest child has periods of depression and sadness and attends counseling. This child has made the statement that he wants to go home to his parents, but the other two children are too young to have made such statements. The court further found that the guardian ad litem recommended permanent custody so that the children could obtain a home that is safe and secure for them.
{¶26} In considering the custodial history of the children under section (c), the court found that D.S. and G.H. were in agency custody from May 2007 to September 2008. The court stated that in addition to that 15-month period, all three children were in agency custody from May 2009 to the time of the hearing.
{¶27} The court found that under section (d), multiple relatives were considered as possible homes for the children, but for a variety of reasons none resulted in
{¶28} Despite the parents’ various arguments to the contrary, the record contains sufficient credible evidence to support the trial court‘s determination that granting permanent custody is in the best interest of the children. Domestic violence by the father has been an ongoing issue throughout this case and the mother has not demonstrated that she can protect herself or the children. In addition, the parents have a history of substance abuse and the mother has only recently begun to address her dependency issues. We find no merit to the parents’ first assignments of error.
{¶29} In their second assignments of error, both parents contend that the court‘s decision is against the weight of the evidence. The mother simply argues this assignment of error on the same basis as the first assignment of error. For the reasons discussed above, we find no merit to this argument and overrule the mother‘s second assignment of error.
{¶31} In his objections to the magistrate‘s decision, the father challenged the manifest weight of the evidence, but failed to specifically raise the issues he now argues in his objections. The juvenile rules require written objections to a magistrate‘s decision to be filed within 14 days of the decision.
{¶32} Therefore, we review the father‘s arguments only for plain error. The doctrine of plain error may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself.”
{¶33} With regard to the testimony of Dr. Moore, the father argues that Dr. Moore relied on inadmissible hearsay in his opinion, that the evaluation was incomplete, inaccurate and should have been updated prior to the hearing, and that the testimony and report do not conform to the requirements of
{¶34} First, the father argues that Dr. Moore‘s opinion was based on inadmissible hearsay as the psychologist considered the history provided to him by the agency in rendering his opinion. The rules of evidence apply to hearings on motions for permanent custody.
{¶35} Dr. Moore testified that he relied on three sources in his evaluation of the father: the information he was given by the agency; his perception and interaction with the father, based on his clinical experience; and the data he obtained from testing performed on the father. He indicated that there was a congruence among the three areas, which supported his diagnosis and explained that he looked at three independent processes and saw consistency across the three modalities. The father argues that the psychologist‘s report was based on inadmissible history from the agency, as the agency reports were not admitted as evidence in the hearing. However, much of the information given to Dr. Moore by the agency was also reported to the psychologist by the father
{¶36} Next, the father argues that Dr. Moore‘s report is incomplete, inaccurate and should have been updated prior to the hearing and that his testing did not conform to
{¶37} Finally, the father argues that the testimony of the caseworker does not meet the requirements for lay witness testimony and contains hearsay statements. Many of the statements made by the caseworker that appellant argues are hearsay were statements made by the mother to the caseworker regarding the domestic violence, and therefore, were admissions of a party and not hearsay.
{¶39} The caseworker testified that the maternal grandmother was investigated as a placement, but stated that she could not take the children because of her medical concerns. The paternal grandfather was also investigated, but a home study was never completed due to noncompliance of a person in the home who failed to complete fingerprinting and, due to a pending criminal charge, the placement was denied. The paternal grandmother was also considered and investigated, but eventually stated she was no longer interested. A paternal great-aunt completed fingerprinting, but was living with the paternal grandfather at the time and was not considered as an appropriate placement.
{¶40} At the start of the hearing, counsel for the father requested a continuance so that the great-aunt could be considered as a placement. The magistrate denied the request, but stated that a final decision would be made after it was determined if the basis for the continuance was supported by sworn testimony. The great-aunt testified that she expressed interest in taking the children, and that she was fingerprinted, but told a background check revealed a history of felony bad checks. She stated that the bad check history was a misunderstanding, but she did not pursue the matter with children services because she was told she could not be considered. She indicated that she is now living with her mother, but did not file a motion for legal custody of the children. After the great-aunt testified, the continuance request was not renewed.
{¶41} Whether placement with a relative is an option that can provide a legally secure placement without a grant of permanent custody may be a relevant consideration
{¶42} Judgment affirmed.
HENDRICKSON, P.J., and RINGLAND, J., concur.